To remain in Donald Trump’s good graces as one of his lawyers, it helps to be seen as aggressively fighting for his interests – even if, by doing so, one actually undermines them.
Take the multiple contempt hearings that have now been held in Trump’s Manhattan criminal trial. Rather than concede his client crossed a line, maybe confused about what was and wasn’t allowed in Judge Juan Merchan’s gag order, attorney Todd Blanche powered through with a “did nothing wrong and would probably do it again” defense, claiming a constitutional right to attack jurors and witness. It has, to date, resulted in Trump being found in violation new fewer than 10 times and threatened with incarceration.
Following Stormy Daniels’ at times disturbing testimony on Tuesday, in which the adult film star described in intimate detail an alleged sexual encounter in a hotel room with the former president, it came as no surprise that Trump’s defense team sought to undermine her credibility. Given this task was Susan Necheles, who had to that point taken a back seat to her two male colleagues.
Shan Wu, a former federal prosecutor writing for The Daily Beast, argued that Necheles – like Blanche, a respected criminal defense attorney before joining Trump’s legal team – erred as soon as the cross-examination began.
“She chose to try to outdo her two male co-counsel in aggressiveness by starting her examination with a substantively weak question, suggesting that Daniels had ‘rehearsed’ her testimony,” Wu wrote. Indeed, Necheles pushed Daniels to admit that she’d undergone “several grueling prep sessions, which included brutal mock cross-examinations”; Necheles emphasized the word “brutal,” per a write-up from Lawfare, and her tone was “pointed” and “adversarial.”
That is, frankly, a dumb way to start, Wu argued. “[J]urors are specifically instructed by judges that it’s proper to prepare witnesses, and that lawyers would not be doing their jobs if they just threw witnesses cold onto the stand,” he wrote. What Necheles should have done is kept it simple: establish the fact that Daniels does not know whether Trump falsified business records to cover up the $130,000 hush payment that she received. Instead of going all-out on Daniels, who jurors may find sympathetic, the defense could have stuck to arguing that, legally speaking, she was irrelevant.
“If Necheles and her co-counsel are performing for their client — and even channeling the strongman image Trump likes to project — that may prove to be a colossal blunder,” Wu wrote. “Bullying may work well on the schoolyard, but doesn’t often go so well in courts of law.”
With Daniels appearing on the stand again Thursday, Trump’s legal counsel will have an opportunity to try a softer approach. If they elect to go with the same aggression as last time, Ryan Goodman, a law professor at New York University, told CNN that it is likely the strategy “backfires.”
“I think it backfires especially if [they’re] going after Stormy Daniels in order to protect Trump’s reputation… publicly, not [with] the jurors,” Goodman commented. If the former president’s team goes after Daniels to the degree that their client would probably like, it could just mean dragging out an embarrassing and damaging spectacle in front of the twelve people, the jurors, who actually matter.
“It could just mean she testifies more and more about the details as to why she is now saying she felt uncomfortable, and some of the testimony she gave is toward the end of the spectrum of non-consensual sexual encounter, and the more they elicit that it could be worse for him [before] the jurors,” Goodman said.
Former federal prosecutor Elie Honig agrees that no good can come to the defense by keeping Daniels on the stand. He has argued that her testimony, including that she “hates Trump,” could help the defense – and that the former president’s lawyers should count their blessings and end it there. Trying to catch contradictions in Daniels' account will only result in airing more details that the defense shouldn't want to air, especially if it intends to appeal based on the argument that those details were prejudicial and should not have been heard in court.
“Do another hour, just remind the jury that she's biased, she hates Trump, and she is desperate to see him behind bars,” Honig told CNN. “Leave it at that. You don't need to go back in that hotel room. It's the last thing you want to do."
